Vol. I, No. 2

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September, 2007

A Publication of the Los Angeles County Bar Association

When engaging in any mediation or settlement process, put these negotiating skills to use to help you achieve the optimal outcome.  This free monthly “One Minute Negotiating Tip” is based on Linda Bulmash's highly acclaimed column, "Negotiate Like The Winners".


Make Sure Your Settlement Agreement Complies With
Evidence Code Section 1123 (b)

In the recent case of R. Thomas Fair v. Karl E. Bakhtiari, et al., Supreme Court of California, 40 Cal.4th 189, filed December 14, 2006, the Court found a settlement agreement entered into at a mediation was not enforceable because it did not contain the magic language contained in Evidence Code Section 1123 (b). 

The Court held that: “To satisfy section 1123 (b), a settlement agreement must [emphasis added] include a statement that it is “enforceable” or “binding”, or a declaration in other terms with the same meaning.”  Here the Court found that a sentence simply stating that any future disputes would be submitted to arbitration was not sufficiently “a declaration in other terms with the same meaning”.

So play it safe.  Make sure your settlement agreements contain the magic language of Evidence Code Section 1123 (b):  “Pursuant to Evidence Code 1123 (b), this settlement agreement is enforceable, binding and admissible in a court of law” or words to that effect. 

On another practical note, make sure that you include language that “the court retains jurisdiction until all the terms of the settlement agreement have been carried out” or words to that effect.  Without that language, the court may not enforce the provisions of the agreement, even if you have used CCP 664.6 language.


 

Linda B. Bulmash, Esq.
ADR Services, Inc.
1900 Avenue of the Stars  Suite 250
Los Angeles, California 90067

Tel:  310.201.0010; Direct: 818.783.6338
E-mail:
 lbulmash@adrservices.org
Website: www.bulmashmediation.com

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